We find the following facts on de
novo review. ORS 419A.200(6)(b) (2007), amended by Or Laws 2009, ch
231, § 6.(1) At the time of the
interview between youth and the police detective, youth was a 12-year-old
middle school student. On the day in question, the detective and a caseworker
with the Department of Human Services Child Welfare Program contacted the
complaining witness and took a statement from her. They then went to youth's
school where youth was brought to a room used by the school for counseling.
The room, which had glass windows and shades on the windows, was next to the
attendance room in the school office. The detective, dressed in business
attire; the caseworker; and youth were all seated around a desk in the room.
Before questioning youth, the detective read youth his Miranda rights
from a prepared card. The detective read youth each right, one at a time. The
detective then asked youth if he understood his rights or had any questions
about them. Youth indicated that he did not have any questions about his
rights.(2) When asked if he
understood what the detective had read to him, youth replied, "Yeah."
The detective then showed youth the card from which the detective had read,
turned the card over, and said to youth, "Here they are." He then
asked youth to sign an acknowledgement on the card that youth understood his
rights and that he had no questions about them. Youth signed the card without asking
any further questions. The caseworker testified without contradiction that youth's
demeanor throughout the interview was calm and that he did not manifest any
indicia of confusion or that he was emotionally upset.

After signing the card, the detective
questioned youth about the complaining witness's report. Initially, youth
denied the allegations, claiming that the complaining witness was
"crazy." The detective persisted, however, explaining to youth that

"[10]-year-old girls don't come up with these ideas off
the top of their head, and that if it was a matter of, you know, [youth] making
a mistake[,] and, you know, being sorry, you know, for some of his actions, I'd
be willing to put that in my report."

Youth then acknowledged that he had sexually penetrated the
complaining witness, although he maintained that she had invited his actions by
telling him that she would no longer play videogames with him unless he
acquiesced. Youth also spontaneously demonstrated how far his finger had
penetrated the complaining witness's vagina. After the completion of the
interview, which lasted 30 to 35 minutes, youth was placed in custody. As he
was removed from the office, youth appeared to have a fainting spell. However,
when rebuked by the officer, youth stood and accompanied the detective to his
vehicle.

A caseworker was in the room while
the detective interviewed youth. The caseworker was seated next to youth in
the counseling room, separated by an empty chair. She verified that the
detective had read the Miranda warnings to youth:

"The main thing I remember in the beginning was that
[youth] did have his Miranda rights read to him. He was told why we
were there. And I recall at first him saying, no, it didn't--he must have
actually--yeah, [the detective] gave a little summary of why we were there and
what the call was, and at first [youth], you know, said, no, that did not
happen."

Youth maintained a flat affect throughout the interview, and
the caseworker was surprised that youth did not cry. According to the
caseworker, the detective did not directly call youth a liar but did tell him
that, based on what the complaining witness had reported, the detective did not
believe youth. At that point, youth began to volunteer information including a
description of how and where the sexual contact occurred. The caseworker
stated that the overall tenor of the interview had not been intimidating. She
observed that the detective had not raised his voice during the interview.

In the month preceding the hearing, a
psychologist whose practice involves adolescent sex offenders conducted a
psychological evaluation of youth. He described youth as a 12-year-old with an
intelligence quotient (IQ) of 106, which he characterized as "just about
right on average for somebody of his chronological age" and a "mental
age * * * roughly equivalent to his chronological age." As to youth's
ability to understand the nature of the Miranda warnings that he was
given, the psychologist testified that youth has "serious emotional
problems" and

"he's got this profile, which puts him at some risk [to
become a sex offender]. What effect that has on would he sign--did he know
what he was doing when he signed the Miranda rights? I really have no
idea. I don't put much confidence in that kind of information for a child, a
child of unknown emotional problems. I just don't. It's not just a matter of
[youth]; it's just as a general rule[,] I don't."

When asked directly about whether youth understood the Miranda
warnings given to him, the psychologist responded, "Not necessarily."

After the hearing, the
juvenile court made written findings and conclusions of law:

"The State presented sufficient evidence regarding lack
of coercive tactics during the interview such to conclude that the Youth's
waiver of Miranda Rights was voluntary. Included but not limited to the
Court's finding was the fact that the Youth was retrieved from class by school
personnel; that he was questioned in an office by a plain clothed detective.
The evidence showed that the officer used an even tone of inquiry, the timing
of the interview was approximately thirty minutes; the uniformed officer that
was present was the school resource officer and that his presence was expected
and thus not inherently coercive. The Court also found that there were no
threats or other implied promises made by the Detective to the Youth. After a
thorough analysis[,] the Court found the interview to be lacking in coercive
measure and the Youth's statements to be voluntary.

"* * * * *

"The Court found that the State did not
present facts sufficient to establish that this Youth * * * understood his Miranda
rights as presented, and thus did not make a knowing and intelligent waiver of
[those rights] as defined in current case law. The Court, in making its
decision cited such cases as [State ex rel Juv. Dept. v. Deford, 177 Or
App 555, 34 P3d 673 (2001) and State ex rel Juv. Dept. v. Cecil, 177 Or
App 583, 34 P3d 742 (2001)]. The Court considered the Youth's age, his lack of
prior involvement with law enforcement, the issues presented in the Youth's
psychological evaluation; the specific questioning of the Youth by [the
detective,] and the testimony by [the psychologist] regarding his opinion as to
whether or not Youth understood the Miranda rights as explained by the
Detective. The Court found that [the detective] merely read to the Youth the
rights in the Miranda warnings in their totality. There were no pauses,
no explanations as to the Youth's individual rights, nor an inquiry of the
Youth to demonstrate whether or not the Youth understood his rights. The
State, having the burden, presented no evidence to support whether the Youth
actually understood what the rights meant, (nothing other than the Youth
himself had watched a TV program with other officers reading other adult
defendants their rights). This observation in and of itself did not
demonstrate the Youth's knowledge to what was being presented to him for
signature.

"The evidence further showed that the
Detective even indicated via an 'x' where the Youth should sign the card.
There was no evidence, other than the Youth's signature, placed as directed by
the Detective, presented by the State for the Court to find that the Youth,
under the totality of the circumstances[,] made a knowing and intelligent
waiver.

"[The psychologist], on the other hand, did
testify that said Youth, based on his specific circumstances did not understand
the rights afforded to him by law as explained by the Detective. [The
psychologist] further testified that most youth[s] do not have the capacity to
knowingly and intelligently waive their Miranda rights. The near-absolutist
stance presented by [the psychologist] was not persuasive to the Court.
Nonetheless, the Court found that due to this Youth's specific circumstances,
including but not limited to [the psychologist's] testimony, that this Youth
did not understand what was presented to him."

Our standards of review in this case
are two-fold. As noted above, our review of the facts is de novo. SeeState ex rel Juv. Dept. v. Gallegos, 150 Or App 344, 347, 945 P2d 656
(1997). Based on our factual findings, we must determine whether, as a matter
of law, youth made a knowing and intelligent waiver of his Miranda rights.
Deford, 177 Or App at 563.

Based on the record before us, we
agree with the trial court's ruling that youth's statements to the police were
voluntary in the sense that they were not coerced by the detective in any
manner. At the time that youth made the incriminating statements to the
detective, he was 12 years old with an IQ of 106, and he suffered from serious
emotional problems. His mental age was roughly equivalent to his chronological
age. Youth was a student in a middle school, and his educational experience
was commensurate with his age. Moreover, there is no evidence in the record
that his mental ability to understand oral or written information was impaired
at the time of the contact with the detective. Rather, the only evidence on
that issue is that youth stated "yeah" when asked if he understood
his rights and that he complied when asked to acknowledge in writing that his
rights had been read to him.

In addition to the above-described
testimony of the detective and the caseworker, which was internally consistent,
we have also considered the testimony of the psychologist. Like the trial
court, we are unpersuaded by the psychologist's viewpoint that 12-year-olds in
general do not have capacity to understand Miranda warnings. The trial
court, however, apparently inferred from the psychologist's testimony that
youth was unable to comprehend his Miranda rights as administered by the
detective. Our review of the evidentiary record, however, does not reveal
support for that finding. It is true that the psychologist opined that youth
had serious emotional problems. However, the psychologist did not explain how
those problems would have interfered with youth's ability to understand the
detective's statements. Indeed, the psychologist was asked what kind of effect
youth's emotional problems would have on his ability to comprehend the
warnings. The psychologist answered, in part,

"I really have no idea. I don't put much confidence in
that kind of information for a child, a child of unknown emotional problems. I
just don't. It's just not a matter of [youth]; it's just a general
rule[.]"

Additionally, the psychologist
testified that youth's acknowledgment that youth understood his rights did not
necessarily indicate that youth, in fact, understood them. When asked to
explain his answer, the psychologist responded, "Because he's 12 years
old. He has serious emotional problems. I don't--you know, he's not an
adult."The psychologist also testified that youth "tends to
be very people pleasing, if you will, for his own purposes, for manipulations,
but he tends to be sociable in individual interview, wanting to please,
talkative, so forth."

Based on those facts, we turn
to whether youth knowingly and intelligently waived his Miranda rights.
To conclude that youth's waiver of his rights was "knowing and intelligent,"
we must determine that, under the totality of the circumstances, youth knew
that he could choose not to speak with the detective, to speak only with counsel
present, and to discontinue talking at any time. Consequently, the inquiry
focuses on youth's state of mind rather than on the detective's conduct.
Overreaching by a law enforcement officer is not necessary for us to find that
the waiver was not "knowing and intelligent." Deford, 177 Or
App at 573. Among the factors to be considered in determining whether youth
made a knowing and intelligent waiver are youth's age, physical condition,
experiences, level of education, background, and intelligence. Id.

Although fact-matching with other
cases is generally not productive in determining whether a knowing and
intelligent waiver occurred in a particular case, we pause to observe that we
considered issues similar to the issue in this case in Cecil and Deford
and that the juvenile court's analysis in this case relied, in part, on its understanding
of our decisions in those cases.

In Deford, the youth, who was
11 years old at the time of his confession, offered medical evidence that he
had the cognitive capacity of a seven-year-old child, lacked the ability to
engage in abstract thought and reasoning, had difficulty in reading, and had an
IQ that hovered in the borderline functioning or mildly mentally retarded
range. One of the youth's experts testified that the youth could recognize
"aspects of meaning or some parts" of the Miranda warnings but
that he would have difficulty in drawing inferences or implications from the
warnings. Another expert testified that the youth had a verbal capacity that
made it appear that he understood when, in fact, he did not. In his view, the
youth lacked an appreciation of the adversarial nature of the interviews with
the police and the potential for self-incrimination arising therefrom. In sum,
the witness believed that the youth did not understand that he could have an
attorney present at the time of the interviews. Deford, 177 Or App at
561-62.

To rebut the youth's evidence, the
state presented both the testimony of the police officers and an expert
witness, who testified as to the youth's cognitive ability. We concluded,
under the circumstances that we found to exist in that case, that the youth's
confession was voluntary. Id. at 572. We then turned to whether the
youth made a knowing and intelligent waiver and held that, under the
circumstances of that case, he had. In particular, we observed that the
officer conducting the interview read the warnings to the youth slowly and
carefully and asked the youth to define them. The youth was able to repeat
each warning and to give appropriate definitions. The youth also testified
that when the officer read his rights to him, "'I kind of figured out that
I was going to get arrested. The cops don't read you your rights for no
reasons.'" Id. at 573. The youth also had prior contacts with the
police in which he had been given his Miranda warnings. Finally, we
observed that the "youth had the cognitive capacity to understand the
warnings[.]" Id. at 574.

In Cecil, the 12-year-old
youth testified that he did not understand that he could choose not to talk
with the detective who, after giving the youth his Miranda warnings,
interviewed him and elicited incriminating statements from him. On
cross-examination, the youth testified, however, that he understood what the
detective had told him. In support of the youth's argument, his psychologist
testified that the youth typically did not offer any resistance to questioning
and that she doubted that he had the capacity to assert his rights based on his
IQ of 73, which is considered low-average and slightly above a mentally
deficient level. The psychologist also stated that the youth had a learning
disability and "a very poor" ability to comprehend and interpret what
he heard. 177 Or App at 586. Referring to our analysis in Deford, we
considered the youth's age, experience, education, background, and intelligence
and concluded that he had validly waived his Miranda rights. Id.
at 588.

It appears that the juvenile court's
decision in this case was influenced by the fact that some of the circumstances
in Deford were not demonstrated to exist in this case. However, the
methodology used to advise the youth of his Miranda rights by the
officer in Deford is not a litmus test to be used in every case for
determining whether a waiver is made knowingly and intelligently. Rather, a
determination of whether there was a valid waiver must be based on the totality
of the circumstances that exist in a particular case. Those include, as
discussed in Deford and Cecil, the youth's age, education,
background, experience, and intelligence. Here, it appears from the evidence
presented before the juvenile court that youth understood the warnings that he
was furnished in light of his oral and written acknowledgement of them. Unlike
the youths in Cecil and Deford, youth was of average intelligence
and the testing administered by the psychologist did not indicate that youth
had any learning disabilities. Youth's education level and mental age were
both commensurate with his chronological age. In fact, taken together, youth's
age, intelligence, education, and demonstrated cognitive ability to track with
and respond to the detective's questions constitute evidence that he had the
competency to understand the warnings and the consequences of waiving them.
The psychologist's testimony does not undermine that conclusion. At most, the
psychologist, by his own admission, offered only an opinion about 12-year-olds
as a general proposition, without any particularized explanation as to why
youth, in light of his particular circumstances and abilities, could not
appreciate the nature of the warnings. Based on all the facts of this case, we
conclude that youth made a knowing and intelligent waiver of his constitutional
rights not to incriminate himself.

Reversed and remanded.

1.The amendment
to ORS 419A.200(6)(b) applies to appeals in which the notice of appeal was
filed on or after June 4, 2009. Because the notice of appeal in this case was
filed before that date, the amendment does not apply.

2.The back of the
card that youth signed states: "DO YOU UNDERSTAND THESE RIGHTS? DO YOU
HAVE ANY QUESTIONS ABOUT YOUR RIGHTS?" After the first question, the word
"Yeah" in quotes is printed by hand. After the second question, the
word "No" in quotes is printed by hand. The detective wrote the
quoted words on the card. At the bottom of the back of the card are what
appear to be the signatures of youth and the detective.